Principles of Tort Important to UK Landowners - Coursework Example

WHY ARE THE PRINCIPLES OF TORT IMPORTANT TO UK LAND OWNERS? By + Affiliation Introduction According to Svyatoshnyuk A., (2014), a tort is a legal wrong for which the law offers a remedy. It is a civil action taken by an individual or citizen of a given country against another and is solved in court. A plaintiff is a person who suffers financial injury or sustains harm as a consequence of an unfair act of the other party (Kenny, 2015) Tort feasor or defendant is the person who incurs liability for damage he has inflicted or has made the plaintiff to incur. The law of torts is resultant of a web of common law doctrines. The principles have been derived from both legislative enactment and case law (Mohamad, A. 2011). The most controversial and contentious area of tort is on the obligation of landowners towards persons who make a trip to their land. In common law, land was divided into the areas below: invitees, licensees and trespassers (Claeys, et al 2013). The invitee owes the uppermost duty of care while the lowermost duty is owed by the trespassers (Fordham, 2014). In the UK, the laws of Torts have greatly assisted to solve conundrums ascribed to to land. Occupiers Liability Prior to delving into the principles of torts, it is essential to first understand the concept of an occupier’s liability and how it is relevant in the UK. The legislative arm of the UK has passed two laws to determine the responsibility of the occupier (Gathii, James. 2015). The first law tackles concerns or matters regarding a visitor. The second law is ascribed to another person who is not a visitor. Mutually, the Occupiers Liability Acts of 1957 and 1984 inflict responsibility on occupiers rather than what it places on landowners (Williams, 2010). Only facts can determine whether a person is an occupier or not. However, it greatly depends on the extent of power exercised. The yardstick that is used is that of occupational control. That is because more than one employee may be occupying the premises. According to Kenny (2015), the Occupiers Liability Act of 1957 enforces responsibility on occupiers with regard to lawful visitors. The Occupiers Liability of 1984 enforces a responsibility on occupiers in view of persons other than a visitor (Oliphant, 2013). Duty to Trespassers This statute highlights that there is no duty to trespassers, except inflicting malicious injury upon them (lawgazette.com.sg). This statute gives the landowner reassurance that he/she owns the land but tries to refrain him from injuring any trespassers that he may encounter. The occupier also has a duty to the invitee; this means that any person who he has given legal access to his land either for business purposes, or for material benefit, will be able to press charges should anything occur to them on the occupier’s premises. This means that the landowner is liable should any occurrences take place to a person or persons who is invited to the land. Principles of torts According to Williams et al. (2010), principles of tort may be categorized into fault and strict liability. The two categories are explained in detail and I have also outlined the major elements of the principles. In addition, I have provided a case study to support my argument on the importance of tort to UK landowners. Fault liability The plaintiff is not granted damage by merely proving that the defendant’s act of omission resulted into damage (Gathii, James 2015). The plaintiff needs to demonstrate that the plaintiff committed a fault. Fault in the case of torts means negligence, malice and intention. In the UK, over a period of time, the House of Lords have always granted damage when the plaintiff is able to prove that there was a fault on the side of defendant. Nuisance. In the UK, the citizens have a right to enjoy quiet environs of their land (Kenny, 2015) Nuisance occurs when other persons hamper or hinder their enjoyment (Zhao, 2013). Noise, pollution of the land or creation of a foul smell are types of nuisance (Badman, 2013). They are offenses that may prompt the property owner to sue the defendant underneath the tort law (Fordham, 2014). Case Law: Sedleigh-Denfield V. OCallaghan (1940). A brief summary of facts is that the council performed some task in the land of the defendants. That was from a request by the owner of a neighboring land (Gathii, James. 2014). The work was to place a culvert in a ditch so as to permit water to drain away smoothly (Mohamad, 2011). The defendant later placed a grate in the wrong place that made leaves clog during heavy downpour (Anderson, et al. 2011). That resulted in water flowing into the land of the neighbor who is the plaintiff. Held: The defendants were legally responsible for the aftermaths despite the fact that the drain had been instilled by a trespasser they had adopted (Kenny, 2015). An inhabitant of land is accountable for the prolongation of a nuisance formed by others if he prolong or adopts it. Negligence. It is the most ordinary type of tort in the UK. Negligence or careless behavior is used to refer to deeds or conducts that create irrational risks of harm towards property and persons. In order to establish an element of negligence, there must be three elements. Firstly, the plaintiff and defendant should have a duty of care (Williams, et al. 2010). Secondly, the defendant must have infringed on duty. Lastly, the loss that the defendant has suffered must be directly as a result of the breach by the defendant. According to Gathii (2014), the other factors that the judge may consider to establish the duty of care include: the harm was reasonable foreseeable, a bond between the plaintiff and defendant existed by way of proximity, and that it is fair and just to enforce liability on the defendants. According to Anderson (2011), the courts normally apply the test of the act by a reasonable man or what a reasonable man could have done to determine the case. The common defense under negligence is through a Latin concept known as of Novus Actus Interveniens (Oliphant, Ken 2013). It revolves around the notion that the act of a third party shall intercede between the original omission of an act, and damage that accrue as a result (Fordham, 2014). Case Law: Dominion Natural Gas Co Ltd. V. Collins (1909). A brief summary of facts is that the defendants had mounted a gas gadget. The apparatus was for supplying natural gas on the buildings of a railway corporation. It had a regulator to monitor the pressure. Their men carelessly made an escape valve to eject into the premise instead of discharging into the open air (Mohamad, A. 2011). The negligence caused an explosion in the premise that left the plaintiff and the railway workmen wounded. Held: In common law, those who deal with hazardous products are subject to a duty of care. The case above did not have any form of contract or agreement between the plaintiff and the defendant. However, the duty of care must be applied in mounting a machine (Gathii, James. 2014). Those who infuse treacherous articles such as explosives, firearms poison and other items ejusdem generis must exercise a duty of care (Williams, et al. 2010). That is to ensure that the parties within the proximity are protected. The court in its judgment ruled that the defendant was at fault. Therefore, he was legally responsible. Intentional torts. According to (McFarlane, et al. 2012), they include those actions that are convincingly foreseeable or projected to cause injury to someone, and goes on to cause injury to that person, are covered under intentional law of tort. Intentional tort in the UK includes: harm caused by assault, false imprisonment, fraud, battery, and deliberate infliction of emotional distress. Tort in land may entail any conscious hindrance with an individual property, such as trespassing. According to Badman (2013), an intentional tort is relevant in the following categories of torts: Firstly, torts derived from the writ of trespass. The person here foresees the damage or results of his actions. The individual has full knowledge that his action is outlawed or prohibited by the laws of the country (Mohamad, A. 2011). However, he continues with the act despite of the consequences. In this case what matters is the desire of the person to cause harm and not his intention to cause harm (Amirthalingam, 2013). Secondly, tort derived from deleterious deceit or fraud. In this type of torts the defendants must make a statement that is untrue or false (Oliphant, Ken 2013). Lastly, tort derived from conspiracy. In case D and E unite to cause harm to F, then F can have an action against them provided the motive of the duo was to cause injury. Conversely, if the purpose of D and E was to supplement their own interest but inevitably harm F, they will not be answerable in conspiracy. Case law: Robert Addie & Sons (Colliers), Ltd. V. Dumbreck (1929). A brief summary of facts in the case was that Dumbreck’s son entered Robert Addie & Sons Ltd.’s (Defendant’s) land, and was killed by Defendant’s hauling system (Svyatoshnyuk, 2014). Dumbreck’s son was only four years of age by the time he met his death. The abridgment of Rule of Law is that the trespasser came onto Defendant’s premises at his own risk (Keating, 2014). The defendant is legally responsible only when the harm is as a result of some obstinate act that relates to something more than the deficiency of rational care (Amirthalingam, 2013). Held: The defendant had frequently warned people of not to use the land a short cut to a railway station (Giliker, 2013). He had also cautioned children for playing in the aforementioned ground. That was evident by signs in the two gates that warned trespassers against prosecution (Oliphant, Ken. 2013). Nonetheless, his attempts were futile as there was no authentic attempt to keep people away from the land. The court granted ruling in favor of the Plaintiff (Ball, 2013). The court in judgment concluded that the defendant was at fault, as he never took appropriate safety measures to alleviate or avoid occurrence of an accident (McFarlane, 2012). The defendant appealed on the ruling but there was no reversal on the previous judgment. Strict liability In the UK, under strict liability tort, the plaintiff does not have to attest that the defendant was at fault. Strict liability may occur as a result of trespass of livestock (Devenney, 2012). That is a historical concept that came as a result of an agricultural society. Case law: Rylands V. Fletcher (1866). A brief summary of facts on Rylands V. Fletcher is that the plaintiff filed a suit because his mine flooded. The plaintiff possessed and managed a mine (Kenny, et al. 2015). The defendant constructed an artificial pond bordering the plaintiff mine (Ali, et al. 2015). The pond caused a mineshaft collapse that resulted in a flood that injured the activities of the plaintiff (Anderson, et al. 2011). The plaintiff filed a suit that was placed in the hands of an arbitrator to ascertain facts. According to Svyatoshnyuk (2014), the abridgment of the Rule of Law is that a person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape (Giliker, 2013). Held: The court ruled on the plaintiff favors but the defendant sought evaluation. The appellate court avowed the verdict by the trial court (Devenney, 2012). The defendant moved to the House of Lords that also avowed (Anderson, et al. 2011). In my own assessment the use of the land by the defendant was perverse and the ruling of the courts was right to hold him legally responsible (McFarlane, 2012). Conclusions The principal of tort are vital to the UK landowners (Ali, et al. 2015). That is because they outline the legal position that they hold when they feel that another person has infringed on their rights. Our study has explored the various principles of torts and how they can be of help to the landowners. They have also analyzed the case laws under every principle, and the rulings made by the judges. It is important to note that in as much as occupiers of land have their rights and statutes that cater to their wellbeing, there are similar laws that cater for any other person who may come across or dwell in the same land. These laws ensure that they are protected from any eventualities and guarantee their safety in case of any eventuality. This is the importance of these statutes and it validates their implementation in the constitution. References Ali, Ashraf, and Muhammad Saleem 2015, "The Law of Tort and its Impact on Corporations." Anderson, Ross Gilbert, Ken Oliphant, Robin Evans-Jones, and Andrew Steven 2011, "PRINCIPLES, DEFINITIONS AND MODEL RULES OF EUROPEAN PRIVATE LAW. DRAFT COMMON FRAME OF REFERENCE (DCFR). FULL EDITION, Ed by Christian von Bar and Eric Clive Oxford: Oxford University Press (www. oup. com), 6 vols, 2010. xxi+ 6,563 pp. ISBN 9780199573752.# 750." Edinburgh Law Review 15, no. 2: 306-314. Amirthalingam, Kumaralingam 2013, "Occupiers Liability and Negligence-Of Gordian Knots and Apron Strings." SAcLJ 25 : 580. Badman, Jean, and Laurie Grimmet 2013, Legal Frameworks for the Built Environment. Claeys, Eric R. "On thePropertyand theTortin Trespass 2013, " Chapter for The Philosophical Foundations of The Law of Torts, John Oberdiek, ed.(Oxford University Press), Forthcoming: 13-29. Ball, David J., and Laurence Ball‐King (2013), "Safety management and public spaces: restoring balance." Risk analysis 33, no. 5 (2013): 763-771. Bennett, Luke 2011. "Judges, child trespassers and occupiers liability." International Journal of law in the Built Environment 3, no. 2: 126-145. Devenney, James, and Howard Johnson 2012. Contract, Tort and Restitution Statutes 2012-2013. Routledge. Fordham, Margaret, 2014, "Nuisance by Noise-The UK Supreme Court on Interference with the Use and Enjoyment of Land." Sing. J. Legal Stud: 397. Gathii, James Thuo 2014, "Incorporating the Third Party Beneficiary Principle in Natural Resource Contracts." Available at SSRN 2500311. Giliker, Paula 2013, "Tony Weir and the Law of TortThis article is based on a paper delivered at the 2012 seminar of the British Association of Comparative Law,‘Tony Weir and his contribution to comparative law scholarship’, which was held at the University of Bristol in September 2012." Journal of European Tort Law 4, no. 1: 63-77. Keating, Gregory C (2014). "Strict Liability Wrongs.": 292. Kenny, Courtney Stanhope, 2015 A Selection of Cases Illustrative of the English Law of Tort. Cambridge University Press. McFarlane, Ben, Nicholas Hopkins, and Sarah Nield 2012, Land law: text, cases, and materials. Oxford University Press. Mohamad, Abdul Basir Bin 2011, "Interest in Land and Right of Occupation in Western Tort Law on Private Nuisance: An Islamic Tort Law Perspective." International Business Management 5, no. 6: 357-365. Lawgazette.com.sg,. Feature. N.p, 2015. Web. 4 July 2015. Oliphant, Ken 2013,"Tort Law, Risk, and Technological Innovation in England , " McGill LJ 59: 819. Sedleigh-Denfield Case, 1940 A.C. 880 (1940). Shavell, Steven. "Strict liability versus negligence." The Journal of Legal Studies (1980): 1-25. Svyatoshnyuk, A. L 2014, "Loss indemnity as a legal implication of contractual delinquency." Вісник Одеського національного університету. Серія: Правознавство 19, Вип. 4 : 108-122. Williams, Dominic, and Apostolos Fasianos 2011, "State aid 2000–2010: The UK experience." Local Economy 26, no. 6-7: 532-543. Zhao, Xiaobo (2013), "Contaminated Land Liability Regime in the UK: General Concerns for Developing Contaminated Land Liability System in China." In Developing an Appropriate Contaminated Land Regime in China, pp. 117-150. Springer Berlin Heidelberg, 2013. Read More